himself loses that respect and that confidence of the public which are among the most valuable and fruitful of his assets as a practicing lawyer. And even if it happens that, for some reason wholly personal to himself, he dislikes the presiding judge as an individual, he is no less in duty and honor bound to be uniformly respectful to the court, and to do no act that will impair or degrade its honor and dignity in the estimation of the public. The attorney who does not understand this to be his duty, or, understanding it, fails to practice it, should surrender his license and so relinquish his granted right further to pursue the profession -a profession whose immutable and exalted and, indeed, wellunderstood ideals he promised, as one of the conditions upon which he was admitted into it, to exemplify in all his professional engagements. But no court, in this state at least, has the right or possesses the lawful power of arbitrarily or capriciously forcing a licensed attorney, regularly employed to represent litigant in the trial of a case, to retire from active participation in such trial. Such judicial action cannot be justified on the ground that it is intended to operate as a punishment for contumacious conduct on the part of the attorney. No such power either inheres in our courts or exists by virtue of legislative fiat. If it did, a litigant could be arbitrarily deprived of the right to the services of an attorney of his own choosing. Besides, such power in any court would, when exercised, have the effect of qualifying or limiting the rights which a citizen acquires by virtue of his license to practice law. In the present case, if the petitioner had been the lone legal representative of the contestee, the latter, under the order of the court denying the petitioner the right to take an active part in the trial, would have been compelled to employ other counsel, with the inconvenience and trouble incident thereto, or have proceeded with the trial unaided by the skill of a lawyer.

A lawyer, when engaged in the trial of a case, is not only vested with the right, but, under his oath as such officer of the court, is charged with the duty of safeguarding the interests of his client in the trial of an issue involving such interests. For this purpose, in a trial, it is his sworn duty, when the cause requires it, to offer testimony in behalf of his client or in support of his case in accordance with his theory of the case, to object to testimony offered by his adversary, to inter

rogate witnesses, and to present and argue to the court his objections or points touching the legal propriety or impropriety of the testimony or of particular questions propounded to the witnesses. If, in discharging this duty, he happens to be persistent or vehement or both in the presentation of his points, he is still, nevertheless, within his legitimate rights as an attorney, so long as his language is not offensive or in contravention of the common rules of decorum and propriety. As well may be expected in forensic polemics, he cannot always be right, and may wholly be wrong in his position upon the legal question under argument, and to the mind of the court so plainly wrong that the latter may conceive that it requires no enlightenment from the argument of counsel. But, whether right or wrong, he has the right to an opportunity to present his theory of the case on any occasion where the exigency of the pending point in his judgment requires or justifies it.

It does not appear from the facts as they are here disclosed that the petitioner at any time addressed the court in disrespectful language. On the contrary, he appears to have proceeded with full consciousness of the duty which an attorney owes to a court, and, when adjudged guilty of contempt, had merely interposed a suggestion in respectful language as to the absence of a showing that the ballots were in the same condition in which they had been received. He was within his rights as an attorney when making this suggestion and in objecting to their consideration until such a showing had been made, even though the objection might have been legally untenable and, as a matter of fact, without foundation, which latter proposition was probably true. But the court appears to have been relentlessly insistent on compliance with its order that the petitioner should not take any active part in the trial of the case or, under any circumstances, address the court; and, as declared, it was alone the persistency of the petitioner to be heard in behalf of his client, of whom he was the senior counsel, which brought forth the judgment and commitment for contempt. In other words, the alleged contemptuous conduct on the part of the petitioner appears to have consisted entirely in the petitioner's attempt to take part in the pending proceedings after the court had ordered that he should not further participate therein. As above indicated, our conclusion is that in so acting the court transcended

its lawful authority, and that the order was wholly beyond the jurisdiction of the court and is, therefore, void.

It follows that the judgment adjudging the petitioner guilty of contempt must be annulled, set aside, and vacated, and it is so ordered.

Chipman, P. J., and Burnett, J., concurred.

[Crim. No. 384. Third Appellate District.-January 3, 1917.] Ex Parte MARGARET CHAMBERS, on Habeas Corpus. CRIMINAL LAW-PRELIMINARY EXAMINATION-TIME.-While the statute does not prescribe the number of days after an information is laid before a committing magistrate within which the preliminary examination of the person informed against must be held, yet it is opposed both in letter and spirit to an unreasonable delay.

ID. PERJURY-AMENDMENT OF INDICTMENT-OFFENSE NOT CHANGEDHABEAS CORPUS.-A defendant in custody under an indictment charging her with the crime of perjury is not entitled to discharge on habeas corpus by the filing against her, after demurrer sustained to the indictment, of an amended indictment by the district attorney under leave of court, where the amended pleading did not change the offense, but simply made more certain the date of the instrument set out in the indictment upon which the alleged perjury was based.

ID. AMENDMENT OF INDICTMENT-CONSTRUCTION OF CODE AMENDMENT. Under section 1008 of the Penal Code, as amended in 1911, the amendment of an indictment or information by the district attorney is permitted, subject to the limitation that the amendment shall be as to matters of form only and not in matters of substance.

APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Third Appellate District.

The facts are stated in the opinion of the court.

Ben Berry, and D. P. Ficke, for Petitioner.

E. P. Foltz, District Attorney, and C. P. Rendon, Deputy District Attorney, for Respondent.

BURNETT, J.-In the return to this application for a writ of habeas corpus appear three warrants of arrest in proper form which it is claimed by the sheriff of San Joaquin County justify his detention of petitioner. The first two were issued by a justice of the peace, based upon verified complaints charging two separate offenses of perjury, and the third is a bench warrant upon an indictment, also for perjury, found by the grand jury of said county.

As to the warrants issued by the said justice, the contention of petitioner is as follows: "No preliminary examination has been held upon either charge, neither does it appear that the officers whose duty it is to conduct such preliminary examination intend to hold a preliminary examination upon either charge, as four months and twenty days have elapsed since petitioner was deprived of her liberty upon said charges, during which time she has repeatedly requested that preliminary examination be held, all of which requests have been ignored. While such process was at first lawful, she has certainly become entitled to a discharge by reason of the failure of the officers to follow the plain mandate of the law in the premises. (Pen. Code, sec. 1487, subd. 2; Const., art. I, sec. 13; Pen. Code, secs. 859, 860 and 861.)"

As to the other process we have this contention: On October 24, 1916, petitioner was indicted for perjury. Upon arraignment, November 20, 1916, a demurrer was interposed, one point being that while the indictment charged the making of certain false statements, there was no sufficient averment of what the real facts were. The demurrer was sustained and the court made an order granting the district attorney leave to amend by November 21, 1916, at 10 o'clock A. M. "This was not an order or the equivalent of an order that the case be resubmitted to another grand jury. (Ex parte Williams, 116 Cal. 512, [48 Pac. 499]; Ex parte Hayter, 16 Cal. App. 211, [116 Pac. 370].) But whether it may be considered the equivalent of an order or not, it was not submitted to another grand jury, and the demurrer having been sustained, the prosecution was at an end (Pen. Code, sec. 1008; Ex parte Williams, 116 Cal. 512, [48 Pac. 499], and Ex parte Hayter, 16 Cal. App. 211, [116 Pac. 370]), unless the amendment authorized by the court was one provided by statute. In pursuance of the order, the district attorney filed what purported to be an amended indictment on November 21, 1916, which indict

ment was not found or presented by a grand jury, but prepared, presented, and filed by the district attorney, and which indictment differed very materially in substance from the indictment to which a demurrer had been sustained."

The said difference, it is claimed, arises from the allegation in the amended indictment that a certain note was written and delivered on February 5, 1916, and that it was material to know the date of its execution and delivery.

We deem it unnecessary to decide whether said warrants issued by the justice of the peace became inoperative and void by reason of the failure and refusal to bring on the preliminary examination. We may remark, however, as to this, that while the statute does not prescribe the number of days after the information is laid before the committing magistrate within which the preliminary examination must be begun, yet both in letter and spirit it is opposed to such unreasonable delay as occurred herein. It has often been said, and it will probably be advisable many times to repeat it, that a person charged with crime has certain rights guaranteed by the constitution and statutes that even a district attorney is bound to respect. No one should be detained in prison indefinitely or capriciously in order that a case may be developed in the future, or circumstances arise that will justify a trial and probably afford sufficient ground for conviction. The interests of society do not demand, and the rights of the individual forbid, such invasion of personal liberty.

But passing the foregoing consideration, we may say that we find no ground for affirming the invalidity of the said bench warrant. The scope of the writ of habeas corpus is familiar, and we need not describe it further than to state that the application for the writ involves, of course, in one form or another, the question of jurisdiction. Herein we think it must be held that there is no lack of legal authority as to any of the proceedings or process by virtue of which petitioner's detention is sought to be justified. The warrant itself is regular and within the provisions of the statute. Indeed, its sufficiency is not assailed or questioned. It is not denied that the indictment constituting the basis for said warrant was found as the law requires. Said indictment undoubtedly stated a public offense of which the superior court had jurisdiction. Without any doubt, the crime of perjury is therein set forth. We deem it unnecessary to set forth its